In 2022, Jason M. Allen filed a copyright application for an image titled “Théâtre D’opéra Spatial,” or “Space Opera Theater.” While the picture had the look of a detailed sci-fi painting, Allen had actually created it through painstaking experimentation in the AI image generator Midjourney; he described using over 600 prompt variations to get the look he wanted. But the US Copyright Office wasn’t impressed. In a series of decisions, Allen’s work became one of the first copyright requests rejected specifically for using AI tools — and an example of how these tools are raising new copyright conundrums at virtually every turn.
Who owns AI art?
Copyright questions are throwing a wrench into generative AI at every turn, from training data to questions about who controls the output.
Copyright questions are throwing a wrench into generative AI at every turn, from training data to questions about who controls the output.
is a senior tech and policy editor focused on online platforms and free expression. Adi has covered virtual and augmented reality, the history of computing, and more for The Verge since 2011.
Generative AI programs — particularly image generators like Midjourney, Stable Diffusion, and DALL-E — have raised fundamental questions about how far artists’ rights to their work extend. Many are trained on huge datasets that include copyrighted works without artists’ consent, and in the US, a series of lawsuits could determine whether the applications fall under the framework of exceptions known as fair use. Meanwhile, the US Copyright Office holds that a computer program can’t make copyright-protected art, frustrating people who see DALL-E or Stable Diffusion as tools akin to Photoshop.
Copyright exists to encourage the production of art, but copyright law also recognizes that most art draws on work that came before it — that’s why exceptions like fair use exist. There’s a constant balancing act in play, and when a new technology appears, it can require renegotiating that balance. Where will it fall in the case of AI? So far, nobody knows for sure.
Correction November 17th, 10:30AM ET: The artist behind a piece of Midjourney-generated work is Jason Allen, not James as originally written. We regret the error.
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